Abstract

If you lack the ability to make personal decisions for yourself, should those decisions be delegable to others? Personal decisions in some domains, such as health care, are readily delegable, while others, such as testamentary dispositions or the choice to get divorced, are not. Courts regularly maintain that prohibitions on delegation are justified because some decisions are too personal for others to make. This Article’s claim is that in the case of decisional incapacity, personal delegations should be permitted, as prohibitions do not serve the stated purpose of preventing others from making decisions for those who lack decisional capacity. They simply make a decision in favor of a status quo outcome. People with cognitive impairments should be able to access those decisions that inhere in fundamental human capabilities, even if they must do so with the assistance of a surrogate. In practice, this means that individuals should be able to delegate such decision-making authority to an agent of their choice through a springing durable power of attorney. Courts should be authorized to empower guardians with this decision-making authority as well, exercising oversight using a deferential standard of review when there is a likelihood of a conflict of interest between a guardian and her ward.